When Time is of the Essence

Among the religious Jewish ambulance corps, there is a great debate that has been transpiring. It is a debate that separates one Hatzalah organization from another. Boro Park, Lakewood, Williamsburg and Los Angeles do it one way. In most other communities, it is done another way.

One side claims that they are being more careful in their observance of Hilchos Shabbos. The other side claims that they are adhering more stringently to Hilchos Pikuach Nefesh. Each side has its halachic decisor, as it should be, of course.

The debate lies around the following issue:

Most everyone knows that what the sages tells us regarding the verse (VaYikra 18:5), “v’Chai Bahem” and you shall live by these laws.” The Gemorah in Yuma 85a tells us that these words teach us that the obligation to save human life overrides the other obligations of Judaism. True, there are three exceptions enumerated in Sanhedrin 74a, but saving a life overrides the laws of observing the Shabbos.

No one is debating this point. Indeed, even if we are unsure if it is a life-threatening emergency, we must still violate Shabbos. No one is debating this either.

The issue at stake here is when it is a case of Pikuach Nefesh, a life- threatening matter, but it is not exactly an emergency – in other words there is plenty of time to deal with the situation and no one is in a state of panic or chaos. Do we attempt to minimize[1] the Shabbos violation in such a case? Should we try to do it through a gentile, or to perform what needs to be done in a manner that only involves a Rabbinic violation?

The short answer is yes. When there is plenty of time, and there is no concern of danger of any sort if there is a delay, the Ramah rules (OC 328:12) that we do attempt to minimize the Shabbos violations. While the other view (that of the Bais Yoseph and the Rambam 2:11[2])is that no minimization is required, Ashkenazic Jewry has followed the custom that we do minimize Shabbos violation when no delay or confusion will be incurred on account of the minimization. This is the view of the Raavya cited in the Ohr Zaruah, the Shiltei Gibborim, and the Maggid Mishna (Hilchos Shabbos 2:11 citing the Ramban) and is cited by the Ramah as the authoritative halacha[3]. This also seems to be how the Mishna Brurah rules.

CONTEMPORARY POSKIM WHO ARE LENIENT

But wait. Some Poskim qualify this Sabbath stringency – even for Ashkenazic Jews. They reason that when dealing with numerous people (such as a number of EMT’s), things can sometimes go very, very wrong. An EMT might erroneously think that a matter which is an emergency is really not an emergency. EMT’s are not always able to distinguish between time-is-of- the- essence emergencies and time is not of the essence emergencies. Precisely because of the possibility of EMT error, these Poskim reason that, generally speaking, when dealing with EMTs, all cases of Pikuach nefesh whether they are time-is-of- the-essence or not, should be treated as if they truly are time-is-of-the-essence.

Practically, this means that these Poskim hold not to minimize Shabbos violation and not to obtain a gentile – evenin cases where there is no pressing time issue involved – even though the matter is life-threatening or potentially life-threatening.

This view is attributed to Rav Moshe Feinstein zt”l in numerous manuals of ambulance organizations, but I have not found it in Rav Moshe’s writings. I did speak to Rav Dovid Cohen Shlita who confirmed to me that this is his view. Rav Shlomo Zalman Auerbach zt”l (Minchas Shlomo #7:3) seems to question the view of the Mishna Brurah on this issue but concludes that it requires further investigation.

FOUR METHODS OF MINIMIZING

To be clear, the Ramah seems to state quite the opposite, that the custom is to follow the view that says that we do minimize malacha when the underlying issues have no constraints of time. This means that the Ramah’s view is that either1] a gentile should be obtained or 2] the Jew should perform the action with what is known as a shinui, a significant change as to how it is performed. Another alternative is to use a child to perform the action (but by having someone other than a parent ask). A fourth possibility is to have two Jews perform the activity holding onto it together which would render the activity a Rabbinic violation – not a biblical one.

ACHRONIM WHO DISAGREED WITH RAMAH

Aside from some of the contemporary Poskim were there others that qualified this Ramah? The first Lubavitcher Rebbe (the GRaZ, end of 328:13) write that one should not follow the Ramah’s stringency because people that are present and see that it was done through a gentile may erroneously think that it is forbidden for it to be done through a Jew even in life-threatening circumstances. The GraZ suggests that if he wants to do it through a gentile, then the person who asks the gentile should inform everyone present that they are only doing so because the gentile is readily available[4]. The TaZ writes that it is not an old custom to follow the stringent view and that, “hayisroel yaasenah bzrizus tfei – it will be done with more alacrity when following the first view.” The Tasbatz, Chida, Nahar Shalom, and Eliyahu Rabba cite the first view.

RAV MOSHE’S VIEW

It is interesting to note that Rabbi Dr. Moshe Tendler cites his father-in-law Rav Moshe Feinstein zt”l (See Torah Sh’b’al peh p. 58, Mossad HaRav Kook, 1983) as distinguishing between the minimization of a shinui and minimization of using a gentile. He writes that a malacha performed with a shinui is not that same malacha at all, and therefore, why should one perform a biblically forbidden act when another more permitted act is available? Thus Rav Moshe’s view is cited in apparent agreement with the Ramah that a shinui form of minimization should be implemented. However, as mentioned earlier, it could very well be that Rav Moshe held that in regard to a large number of people where error is bound to happen, that Rav Moshe did agree that no minimization should be made, and would be in agreement with the ruling issued by Rav Dovid Cohen.

OTHERS

Rabbi Rephoel Yitzchok Halpern in Maaseh Chosev Vol. III #12 rules that one should minimize in regard to these situations. Indeed, he goes so far as to write that the ambulances and cars should be previously retrofitted so that the systems inside them become only Rabbinic violations.

REASON FOR THE INITIAL DEBATE

What is the reason for the debate between the Rambam (who requires no minimization) and the Ramban (who requires minimization? Some authorities (GraZ and others) wish to associate the debate with the final disposition of the Talmud’s question as to how the interplay between Pikuach Nefesh (saving a life) and Shabbos actually works. Is Shabbos merely set aside (Hudchah) when faced with Pikuach Nefesh, or is Shabbos non-existent (Hutrah) when it comes to Pikuach Nefesh? However, other authorities (including the Mishna Brurah 328:35) dismiss this association and write that the Ramban would hold to his view of minimization even according to the view of Hutrah.

Others understand the debate in terms of whether or not we are concerned for two factors. 1] Will others derive incorrect halacha from here and in some future case not save a life? 2] In this very situation will the use of someone else cause a lack of alacrity in how the saving action is performed? The Rambam would be of the view that these factors or at least one of them is a concern. The Ramban would be of the view that these factors should not play a role in minimizing malacha.

CONCLUSIONS

So which position should an organization follow? Should a new ambulance organization choose to follow what is done in Lakewood or what is done in Flatbush? Whatever the conclusion is, it is essential that there be unity on the issue. It is counterproductive to have a situation where the actions of a life-saving organization are publically questioned, as this can lead chas v’shalom to loss of life. There have been cases where public questioning of the Sabbath observance of a religious medical practitioner has led to a reticence on the part of people with possible medical emergencies in seeking assistance. They may, as a consequence of such public question, dismiss a possible heart attack with something innocuous such as heartburn and not seek out the necessary intervention. There are respected Poskim on both sides of the issue. Therefore, publically questioning a delicate matter such as this can chalilah lead to greater loss of life when someone could chalilah end up not calling for the necessary medical intervention. This would be the greatest tragedy.

The author can be reached at yairhoffman2@gmail.com

[1] Minimizing, by the way, involves three areas: Minimizing the severity of the prohibition, minimizing the amount of people violating the prohibition, and minimizing the manner in which the prohibition is performed.

[2] The Rambam seems to differentiate between other cases and that of natural childbirth, where one should attempt to minimize if possible. The rationale then seemed to be that problems in childbirth were quite rare, with figures as low as 1 in 1000. This is the understanding of the Hagaos Maimonius in the Rambam. These numbers, however, do not seem to fit with the historical record of complications of birth back then. Indeed, there is another text of the Rambam (see Maharitz in Responsa Peulas Tzaddik Vol. III #119) that states that problems in birth are indeed an issue.

[3] [Author’s note: The exact citation in the Shulchan Aruch is misleading, as the Ohr Zaruah #58 is clearly disagreeing with the Raavya].

[4] In Shmiras Shabbos k’hilchasa (Chapter 32 footnote 88) the author quotes Rav Shlomo Zalman Auerbach as requiring this announcement even when a shinui is performed so that no one err and think that Piuach nefesh actions are forbidden to be performed by Jews.

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